Police Reform and Social Responsibility Bill

Memorandum submitted by the Advisory Council on the Misuse of Drugs (PR 29)

1. Advisory Council on the Misuse of Drugs

The Advisory Council on the Misuse of Drugs (ACMD) is a statutory and non-executive non-departmental public body, which was established under the UK's Misuse of Drugs Act 1971 . Further information on the ACMD and its work is available at: http://drugs.homeoffice.gov.uk/drugs-laws/acmd/.

2. Role and Remit

2.1. The ACMD is required under the Misuse of Drugs Act (1971) "to keep under review the situation in the United Kingdom with respect to drugs which appear to them likely to be misused and of which the misuse is having or appears to them of having effects sufficient to constitute a social problem".

2.2. The Advisory Council on the Misuse of Drugs (ACMD) makes recommendations to Government on the control of dangerous or otherwise harmful drugs, including classification and scheduling under the Misuse of Drugs Act 1971 and its Regulations.

2.3. The ACMD also carries out in-depth inquiries into aspects of drug use that are causing particular concern in the UK, with the aim of producing considered reports that will be helpful to policy makers and practitioners.

2.4. The ACMD’s work programme is developed through requests from ministers and of the ACMD’s own volition.

3. Membership

3.1. The ACMD has 25 members (as of 4th January) with a statutory requirement of 20. There is presently a statutory requirement of 6 members with specific expertise (the proposed clauses in the Police Reform and Social Responsibility Bill would remove these statutorily required positions).

Current Structure and work programme

*Standing committee

3.2. The ACMD meets twice yearly. Members are encouraged to become involved in the work of the ACMD’s working groups and sub committees. The ACMD co-opt individuals for their specific areas of expertise; most commonly this is to assist Working Groups but on occasion it may be to the Council.

3.3. The ACMD considers and advise on matters of its own volition, as well as those that are referred to it by Ministers of the Home Office or other Government Departments.

3.4. The ACMD is supported by a Secretariat located in the Science and Research Group in the Home Office.

4. The ACMD’s position regarding the proposed temporary banning power and proposed changes to its constitution.

4.1. The ACMD’s position regarding the proposed changes contained within the Police Reform and Social Responsibility Bill are fully described in correspondence to the Minister for Crime Prevention at Annex A ii).

4.2. Criticism of the ACMD in the press, in relation to the proposed changes to the constitution of the ACMD, prompted the ACMD to send the letter at Annex B to the Government Chief Scientific Adviser. The criticism related to claims that the proposed changes would enable ministers to set drug policy without scientific evidence. In addition, the letter addresses inaccurate claims that the ACMD was not consulted on the proposed changes.

January 2011


Annex A. Correspondence between the minister for Crime Prevention and the ACMD.

i) Correspondence from Minister for Crime Prevention to the ACMD.


ii) Correspondence from the ACMD to the Minister for Crime Prevention.

ACMD

Advisory Council on the Misuse of Drugs

Chair: Professor Les Iversen

Secretary: Will Reynolds

3rd Floor Seacole Building

2 Marsham Street

London

SW1P 4DF

020 7035 0454

Email: ACMD@homeoffice.gsi.gov.uk

James Brokenshire MP,

Home Office

2 Marsham Street

London

SW1P 4DF

20th September 2010

Dear Minister for Crime Prevention,

Re: ‘Legal Highs’ – Temporary Banning Power

Thank you for your letter of 20 August 2010, in which you ask the Advisory Council on the Misuse of Drugs (ACMD) to consider issues concerned with the proposed introduction of a Temporary Banning Power. There are several issues that are raised in your letter that I would like to deal with in turn: 1) the Temporary Banning Power - framework and ACMD input, 2) trigger points for the Temporary Banning Power, 3) a working protocol – agreed between the ACMD and government and 4) proposed changes to the constitution of the ACMD.

The ACMD consider that in tackling the issue of ‘legal highs’ the Temporary Banning Power legislation (and of course the Misuse of Drugs Act 1971) should not be viewed in isolation. The ACMD believe that other legislation (for example, the Medicines Act 1968, Trade Descriptions 1968) also have a role to play in curbing the supply of harmful ‘legal highs’ drugs. The ACMD will be providing you with further advice on such broader issues in due course.

1. Temporary Banning Power – framework and ACMD input.

Introduction: The ACMD have considered the proposed Temporary Banning Power in the context of new psychoactive substances (‘legal highs’) as you explained in your letter. The ACMD stress that the Temporary Banning Power, whilst having an important role, should be used in exceptional circumstances, where swift action to prevent harm is the imperative, and it is not used as a substitute for full control. The ACMD are pleased that you state that your preferred approach will remain a full assessment by Council; following the approach that is currently the norm.

Seeking ACMD advice and timeframes: The ACMD consider that the most robust (enduring) drug policy decisions are taken with full knowledge and consideration of the evidence base that is available. It is therefore imperative that the ACMD are consulted before invoking a temporary banning power and it should be within the auspices of the ACMD to provide you with advice as to whether a full assessment of a drug(s) - as is current process - or invoking a temporary banning is most appropriate. Therefore, we recommend that in referring a substance to the ACMD, you ask the ACMD to consider all options for control on reflection of the available evidence.

In your letter you explain that drugs subject to a temporary classification would be placed under the temporary order for a period of twelve months. There are two timescales of importance where it is proposed there is ACMD input – at the point of referral and after a temporary ban has been invoked. The ACMD will, upon referral, strive to provide advice at the earliest opportunity, taking into account the need to protect the public, whilst balancing the need to provide the best advice on the available evidence. In respect of both the ACMD’s initial consideration and that after a ban has been invoked the ACMD would not want the timescales to be too prescriptive as the time to collate and consider the evidence would depend greatly on the nature of the substance under consideration. However, the ACMD proposes that on a case-by-case basis the timeframe is agreed between you and the ACMD Chair from the outset.

The ACMD understand that it may be possible to re-invoke a temporary banning power, but acknowledge this is not a satisfactory solution and also is not commensurate with the purpose of the proposed legislation. The ACMD consider that there should be flexibility in the legislation and contingency should it be required.

Penalties: The ACMD have given careful consideration to your proposal that the Temporary Banning Power only carries supply-related offences – commensurate with Class B current maximum penalties. The ACMD believe that such supply side activity is a key area to target. To ensure that dealing smaller quantities is covered it is important that ‘possession with intent to supply’ is part of the legislation and robustly enforced to prevent harms to those who may purchase these drugs. A particular issue the ACMD identify is what is known as ‘social supply’. In this scenario, individuals A & B agree that B gives A £10 and A buys £20 worth of drugs for the pair of them. A then ‘supplies’ £10 worth of drugs to B. In the legal sense of ‘supply’ the charge of supply is made out against A. However, the Court of Appeal in R -v- Denslow 1998 EWCA CRIM 437 found that in the above instance the proper charge is possession. This case is not well known to Prosecuting Authorities; the ACMD consider that the Home Office Guidance accompanying the legislation should make it clear that to prosecute as in the given scenario (i.e. possession) would not be in keeping with the legislative intent.

In communicating the penalties relating to the Temporary Banning Power, the ACMD recommend that the relationship to the penalties to current class B drugs is removed. This will prevent any confusion or unwanted messages that the substances are likely to be included in class B and any perception should a substance eventually become a class C substance that a substance has been ‘downgraded’. The ACMD recommends that the specific sentences are written out in full.

Scientific issues : The issue is complicated in the field of ‘legal highs’ because very often branded forms of the drug do not contain the purported constituents. The recent UK experience of naphyrone (branded as NRG -1 among other names) is an example of a product that, upon analyses by test purchasing, was found to show wide inter sample variability with a diversity of psychoactive compounds – including many that were illegal. It is only possible to legislate for named compounds under the Misuse of Drugs Act; therefore, before consideration of invoking a Temporary Banning Power there will have to have been preceding analysis of test purchases or seizures of branded products which are believed to contain the drug(s) of concern.

The introduction of the Temporary Banning Power will put certain demands on the evidence required by the ACMD in order to provide its advice, either before advising on the Temporary Banning Power and after it has been invoked and before giving further advice in relation to classification under the Misuse of Drugs Act. For example, whilst for recent examples of so-called ‘legal highs’ there have been analogous substances already controlled by the Misuse of Drugs Act for which there has been a substantial scientific evidence base for the harms, this might not always be the case. If a completely novel substance comes to the attention of the ACMD, it may be that basic pharmacological research may be required in order to understand its psychoactive properties and potential harm. We therefore recommend that the Home Office maintains a research capacity that the ACMD can request is used for research to inform its advice.

2. Trigger points for the Temporary Banning Power.

The ACMD does not believe the point at which consideration is given to invoking a Temporary Banning Power should be too prescriptive. The purpose of the temporary banning power should be the prevention of harms. Therefore, the ACMD considers that the trigger point should be ‘[on the available evidence] there are reasonable grounds for considering that a substance does , or has, the potential to cause harm’. As part of the ACMD’s initial consideration as to whether a temporary banning power should be invoked it will look to understand the identity of the substance, consider related substances, consider any legitimate uses and gather evidence internationally and locally regarding the substance and its harms (including, for example, A&E admissions, known pharmacology, dependency and social harms etc.). However, it is not possible to detail the ‘level’ of evidence that would be required, nor what that evidence would be – evidence, and the relative importance of each type of evidence, will depend on the substance being considered.

3. Working Protocol.

The ACMD welcomes developing a document that reflects the working relationship envisaged between the Coalition Government and the ACMD. The protocol should reflect expectations of advice from the ACMD and its receipt by government and should be a basis of the ACMD’s engagement in invoking the Temporary Banning Power.

The ACMD will need to put in place procedures that facilitate working to the proposed Temporary Banning Power. This would need to include the expertise on the Council and also the mechanisms within which both the ACMD and Government would be expected to work.

The ACMD note that consideration of legitimate uses of new psychoactive substances can take time, including consultation with industry. The ACMD welcome the proposal that when considering a temporary ban the Home Secretary will seek parallel advice from the Department for Business, Innovation and Skills on legitimate uses, and will develop any impact assessment required to inform her decision on whether to impose a temporary ban on that drug.

I would appreciate working with your officials in the development of the working protocol and would request that we meet with them soon to discuss further.

4. Proposed constitutional changes to the ACMD .

The ACMD believes that the current six statutory positions provide a list of some of the (but not the only) ‘core expertise’; therefore the naming of positions on the ACMD has an important purpose. However, the ACMD acknowledges that the Misuse of Drugs Act is nearly 40 years old and it is questionable whether the statutory positions identified in the Act now correlate with what is required. The ACMD propose that the working protocol identifies areas of expertise that should, under normal circumstances, be members of the ACMD in a non-statutory capacity. I understand from your letter that the Home Office Chief Scientific Adviser is consulting more widely on this issue and I would be grateful to see the outcome of this consultation before making any final decision.

The ACMD considers that changes to the constitution are particularly important at this time, as the introduction of the Temporary Banning Power and the need to provide advice within short time frames may necessitate a re-configured base of expertise upon which to draw. We recommend that it would also be of benefit if the Home Secretary consulted the Chair of the ACMD, at appropriate intervals, as to the future expertise required on the ACMD.

Yours sincerely,

Professor Les Iversen FRS


iii) Correspondence from the Minister for Crime Prevention to the ACMD.

Annex B. Letter to Sir Professor John Beddington

ACMD

Advisory Council on the Misuse of Drugs

Chair: Professor Les Iversen

Secretary: Will Reynolds

3rd Floor Seacole Building

2 Marsham Street

London

SW1P 4DF

020 7035 0454

Email: ACMD@homeoffice.gsi.gov.uk

Professor Sir John Beddington,

Government Office for Science,

1. Victoria Street

London

SW1H 0ET

15th December 2010

Dear John,

Re : Advisory Council on the Misuse of Drugs – recent media speculation

I am writing to you, in your capacity as Government Chief Scientific Adviser, to assure you and the scientific fraternity that the ACMD are, and will remain committed to providing high quality, independent, expert advice unfettered by Government. The provision of this advice is underpinned by a diverse membership of expert individuals which will of course include those with scientific expertise.

It is with some dismay that I have read the recent claims in the media that the changes to the Misuse of Drugs Act 1971 contained in the recently published Police Reform and Social Responsibility Act will enable "ministers to set drug policy without scientific evidence" [Times News, Monday December 6th] . These articles have prompted this letter to you, on behalf of the Council, to explain that the claims are entirely without foundation.

It is important to recognise that m embers of the Advisory Council on the Misuse of Drugs (ACMD) were fully consulted by ministers on changes to its constitution and the proposed introduction of the temporary banning power as part of the Police Reform and Social Responsibility Bill. The ACMD have indicated in a letter to the minister (available from the ACMD website) that it is supportive of these changes.

The present requirement for six statutory posts (of a current total of 26 members) means that the Council is not statutorily constituted if any one of these fa ll s vacant, as was the case for the first few weeks of 2010 . The removal of this legal requirement should prevent this happening in the future.  In its letter to the minister the ACMD describe that a published working protocol, that would describe the working relationship between the ACMD and government, could articulate expertise requirements . This document would not be statutory, but would be a published commitment, thus retaining the flexibility of the ACMD to be reactive to the changing requirements that developments in the drugs field present. The ACMD entirely refute the accusation that this is a negative development that has been imposed by Government.

Furthermore, it is false to consider that the ACMD will be bereft of scientific expertise in years to come. Disciplines such as pharmacology, chemistry, psychopharmacology are all important to the work of the ACMD – particularly in the context of the issue of ‘legal highs’ and the proposed temporary banning power. Changing the constitution of the ACMD is not a move to shun those disciplines presently enshrined in the legislation, but a positive move to allow greater scope for the added inclusion of modern disciplines. Indeed, as well as yourself the Home Office Chief Scientific Advisor consulted with a number of Learned Societies and National Academies to ensure that there was proper consideration, by the scientific community, of these proposals. The responses reflect an acceptance of the need to be flexible and for change. Your comments, supportive of the proposed changes, also indicated that it would allow the Council to access appropriate expertise and scientific advice depending on the issue being considered. I also note that you consider it essential that there is transparency in the expertise required on the Council. It is important that the ACMD is progressive and that its membership provides an expertise fit for a modern purpose. We believe that a revised constitution and working protocol will allow for this.

It should also be noted that as Chair of the ACMD I have been closely involved with the recruitment process for new members as part of the interview panel. The final decision for appointment is the responsi bility of the Home Secretary, however, as ACMD Chair it is important that I maintain input – this has been integral to the current recruitment campaign. This year’s recruitment campaigns, run by the Home Office for members to the ACMD, have attracted a large number of high calibre candidates – from scientific disciplines and a breadth of other experts from the drugs field. To me this indicates the continued willingness of highly qualified experts prepared to give freely their expertise and time to join the Council.

 

The ACMD welcomes the proposed introduction of a temporary banning power, which may help to provide a more rapid response to new psychoactive substances as they emerge in the rapidly changing drugs market in this country. If such a power had been available in December 2009, when ACMD first alerted the then Home Secretary to the rapidly growing misuse of mephedrone, it might have helped to slow the dramatic increase in the availability and use of this drug during the early part of this year, before ACMD were able to prepare a detailed recommendation that it be banned. These proposals should not be seen as a panacea to new ‘legal highs’, however, it is a measure that we welcome as a positive step to controlling the harms of new synthetic drugs.

The ACMD maintains an open dialogue with Government in a shared objective of reducing the harms of drugs. I personally uphold and defend the ACMD’s continuing scientific independence, but I must reiterate that recent criticism of the Government levelled at the ACMD is, for the most part, inaccurate reporting and speculation.

Yours Sincerely,

Professor Les Iversen


Annex C. Biography of Professor Les Iversen

Professor Leslie Iversen. PhD, FRS is Emeritus Professor at the Department of Pharmacology, University of Oxford. He was previously Director of the Wolfson Centre for Research on Age Related diseases at Kings College London (1999-2004), Director of the Neuroscience Research Centre for Merck & Co Inc in the UK (1983-1995), and Director of the Medical Research Council Neurochemical Pharmacology Unit in Cambridge, England (1970-1983). He is well known for his research on how drugs interact with chemical messengers in the nervous system and has published more than 300 scientific papers on this topic and is the author of "The Science of Marijuana, 2nd Ed" 2007; "Speed, Ecstasy and Ritalin: the Science of Amphetamines" 2007; and "Introduction to Neuropsychopharmacology, 2008, Oxford University Press. He acted as Scientific Adviser to the UK Government House of Lords Select Committee on Science and Technology enquiry into Cannabis ("Cannabis: The Scientific and Medical Evidence" London, The Stationery Office, 1998) and is currently Chair of the UK government’s Advisory Council on Misuse of Drugs. He is a Fellow of the Royal Society London, and a Foreign Associate of the US National Academy of Sciences.